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THIRD DIVISION
July 28, 2004

Petitioner, County of Cook (the County), appeals from an order issued by respondent, the LocalPanel of the Illinois Labor Relations Board (ILRB), regarding the collective bargaining rights of attendingphysicians (attendings) employed by Oak Forest Hospital (the hospital), a hospital operated by theCounty. The ILRB determined that the attendings are not managerial employees pursuant to section 3(j)of the Illinois Public Labor Relations Act (the Act) (5 ILCS 315/3(j) (West 2002)) and that the attendingsin the hospital's Department of Rehabilitative Medicine (rehabilitation attendings) are also notsupervisory employees under section 3(r) of the Act (5 ILCS 315/3(r) (West 2002)). As a result, pursuantto the Act, both the attendings and rehabilitation attendings were eligible to participate in collectivebargaining and to vote on the election of respondent, Service Employees International Union - Local 74HC (the union), as their collective bargaining representative.

The County argues on appeal that the ILRB erred in its determinations because (1) theattendings engaged predominantly in executive and managerial functions and were, therefore,managerial employees pursuant to section 3(j); and (2) the rehabilitation attendings, in addition to beingmanagerial employees, were supervisory employees pursuant to section 3(r) based on their direction andevaluation of the residents in their department. We affirm.

Background

In April 2002, the union filed a representation/certification petition with the ILRB seeking torepresent a bargaining unit of all full- and regular part-time attending physicians employed by the Countyat the hospital. The petition also concerned three outlying clinics but the ILRB's findings regarding theclinics are not at issue here. The County opposed the petition, arguing that the attendings weremanagerial or supervisory employees within the meaning of the Act and should be excluded fromcollective bargaining. An eight-day hearing was held before an administrative law judge (ALJ). Theparties stipulated that the hospital is a public employer and that the attendings are professionalemployees within the meaning of the Act. The parties also stipulated that certain individuals, includingthe hospital's chief operating officer, its medical director, its director of oncology, its chief of dentistry andthe chairmen of the hospital's medical administration division departments, be excluded from thepetitioned-for bargaining unit because they are managerial or supervisory employees under the Act.

The hospital is part of a health care network operated by the Cook County Board ofCommissioners (Board) through the Cook County Bureau of Health Services (Bureau). The Bureau'sbylaws provide that the Board is responsible for control and management of the hospital's property, fundsand operations. Under the bylaws, the Board has the power to amend the Bureau's bylaws; appoint,terminate or modify the medical staff at the hospital; receive and act upon budget recommendations;review and approve finances, costs and charges and general wage and salary increases and decreases;make, amend, repeal or approve overall policies for operation of the hospital; and approve the hospital'smedical staff's rules and regulations.

The hospital is comprised of several divisions and managed by a chief operating officer (COO)appointed by the Board. The COO has authority and responsibility for the day-to-day affairs of thehospital, subject to the Bureau's bylaws and authority of the Bureau chief. Pursuant to the bylaws, theCOO is responsible for presenting "recommendations" to the Board regarding operations and long-rangeplanning of the hospital and for carrying out the Board's policies and directives. Among other duties, theCOO must present contracts and purchase agreements, annual budget recommendations andrecommendations from the medical staff regarding staff appointments or termination of clinical privilegesto the Board for approval.

One of the hospital divisions is the medical administration division, which is overseen by amedical director, who is appointed by and reports directly to the COO. The medical director works underthe direction of the COO in consultation with the medical staff. The medical staff is comprised of allIllinois-licensed doctors of medicine, osteopathy, dentistry and podiatry with hospital privileges andincludes approximately 60 physicians, including 48 attendings and 12 department chairs. Attendings arethe primary care physicians at the hospital. The departments in the medical administration division areheaded by department chairs who report to the medical director and are responsible for the operation ofhis or her department. One attending in each department is designated to act as that department's chairwhen the chair is absent, and three medical staff members are elected to serve as president, vicepresident and secretary/treasurer of the medical staff.

The Bureau's bylaws assign "the overall responsibility for the quality of the professional servicesprovided" within the hospital to the medical staff. The Board gives the medical staff "the responsibilityfor the preservation and improvement of the quality and efficiency of patient care provided" in thehospital and requires the medical staff to conduct activities to fulfill that responsibility and to adoptmedical staff bylaws, as approved by the Board. The medical staff bylaws state that the medical staff is"responsible for the quality of medical care in the Hospital and accepts and discharges this responsibilitysubject to the ultimate authority of the Board of Commissioners of Cook County." Pursuant to thosebylaws, the medical staff's purposes include initiating and maintaining rules and regulations for thegovernance of the medical staff and providing a means through which it may participate in the hospital'spolicy-making and planning process and discuss issues concerning the medical staff and the hospitalwith the Board, Bureau chief and the COO.

The medical staff bylaws provide for department and hospital-wide committees set up to carryout the medical staff's responsibilities. Attendings are expected to serve on at least one committee andmost do so. Only four attendings serve on no committee. Few of the committees meet more than oncea month and some meet for as little as a half hour every two to three months, as needed. Committeedecisions are reached by consensus among the committee members and, if consensus cannot bereached, a formal vote is taken. A committee's recommendations are presented to the medicalexecutive committee for its review. If approved, the medical executive committee submits therecommendation to the COO and joint conference committee for review. The joint conferencecommittee, which is composed of representatives from the Board, hospital administration and medicalstaff, acts as "a medical administrative liaison committee and an official point of contact" between theBoard, medical staff and COO.

Attendings are expected to attend at least two of the quarterly medical staff meetings each yearand 50% of their department's meetings, both the monthly hour-long all-staff meeting and the thriceweekly half hour attendings-only meeting. Decisions reached at the all-staff meetings are submitted tothe medical director and Medical Executive Committee and those reached during the attendings-onlymeetings are submitted to the medical director and the COO. Attendings typically spend 10% of theirwork time engaged in committee and department meeting activities.

The County asserted that the attendings' committee activities, their participation in departmentmeetings and their development of individual patient-care treatment plans by which they issue ordersand direct other hospital personnel are evidence of their managerial status. The ALJ determined that theattendings' work in department and committee meetings was executive and management decisions butthat the attendings' decision making in the meetings was not final or independent and did not constitute apredominant part of their activity because patient-care duties took from 50% to 95% of the attendings'working time. As a result, the ALJ found that, although the attendings did direct the effectuation ofmanagement policies and procedures, they did not meet the Act's definition of managerial employeesbecause they were not engaged predominantly in executive and management functions.

The County also argued that the rehabilitation attendings, in addition to being managerialemployees, acted as supervisors of the residents working in the rehabilitation department. The ALJdetermined that the rehabilitation attendings did not have the supervisory authority to discipline theresidents in their department or to effectively recommend such discipline and that their direction of theresidents did not amount to the authority to substantially affect the residents' terms and workingconditions. As a result, the ALJ found that the rehabilitation attendings did not exercise supervisoryauthority over the residents in their department, let alone for a preponderance of their work time asrequired under the Act, and that they were, therefore, not supervisors. Based on these findings, the ALJrecommended that all full- and regular part-time attendings employed by the County at the hospital,excluding the attendings previously stipulated to as being managers and supervisors, be eligible to voteon representation by the union and that an election be ordered.

The County filed exceptions to the ALJ's recommended decision and order, and the ILRB heardoral argument. The ILRB accepted the ALJ's recommendation. Following an election, the ILRB certifiedthat the union was the exclusive representative of the salient attendings for the purposes of collectivebargaining with respect to pay, wages, hours of employment and other conditions of employment.

The County filed a petition for review of the ILRB's order with this court. The AdministrativeReview Law (735 ILCS 5/3-101 et seq. (West 2002)) governs judicial review of the ILRB's decision andextends to all questions of law and fact presented by the record. 5 ILCS 315/9(i) (West 2002); IllinoisFraternal Order of Police Labor Council v. Illinois Local Labor Relations Board, 319 Ill. App. 3d 729, 736,745 N.E.2d 647, 653 (2001). Given that the ILRB's certification order is a final administrative decisionpursuant to section 9(i) of the Act (5 ILCS 315/9(i) (West 2002)), we have jurisdiction over the County'stimely appeal pursuant section 3-113(a) of the Administrative Review Law (735 ILCS 5/3-113(a) (West2002)). National Union of Hospital & Health Care Employees, American Federation of State, County &Municipal Employees, AFL-CIO v. County of Cook, 295 Ill. App. 3d 1012, 1015, 692 N.E.2d 1253, 1254(1998).

Managerial Employees

The ILRB determined that the attendings at issue are not managerial employees under the Actand are, therefore, eligible to participate in collective bargaining. The County argues that the ILRBapplied the wrong standard in determining the attendings' managerial status by (1) requiring theattendings to possess final authority in recommending or controlling hospital policy; (2) finding theattendings' patient-care duties are separate from their managerial duties; and (3) finding that theattendings do not spend a predominant amount of their time performing their managerial duties. TheCounty does not contest the ILRB's factual findings. Rather, the question is whether the facts satisfy thestatutory standard and the ILRB applied that standard correctly. Accordingly, we are presented with amixed question of law and fact, which we review under the "clearly erroneous" standard. AFMMessenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391, 395, 763 N.E.2d272, 279, 282 (2001), citing City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205,692 N.E.2d 295 (1998). An agency decision will be deemed clearly erroneous only where, afterreviewing the entire record, the court is " 'left with the definite and firm conviction that a mistake hasbeen committed.' " AFM Messenger Service, Inc., 198 Ill. 2d at 395, 763 N.E.2d at 282, quoting UnitedStates v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 766, 68 S. Ct. 525, 542,(1948);accord County of Cook v. Illinois Labor Relations Board Local Panel, 347 Ill. App. 3d 538, 551, 807N.E.2d 613, 624 (2004).

Pursuant to the Act, public employees may join unions and be represented by a union for thepurpose of collective bargaining. 5 ILCS 315/2 (West 2002); Village of Elk Grove Village v. Illinois StateLabor Relations Board, 245 Ill. App. 3d 109, 115, 613 N.E.2d 311, 316 (1993). The Act defines a "publicemployee" as "any individual employed by a public employer, * * * excluding all of the following: * * *managerial employees; * * * confidential employees; * * * and supervisors except as provided in this Act."5 ILCS 315/3(n) (West 2002). Consequently, if the attendings are managerial employees under the Act,they are excluded from participating in collective bargaining. The Act's managerial exclusion "isintended to maintain the distinction between management and labor and to provide the employer withundivided loyalty from its representatives in management." Chief Judge of the Sixteenth Judicial Circuitv. Illinois State Labor Relations Board,178 Ill. 2d 333, 339, 687 N.E.2d 795, 797 (1997).
Section 3(j) of the Act defines a managerial employee as "an individual who is engagedpredominantly in executive and management functions and is charged with the responsibility of directingthe effectuation of management policies and practices." (Emphasis added.) 5 ILCS 315/3(j) (West2002). The ILRB developed a two-part test for determining whether an employee is a managerialemployee: (1) "the employee must be predominantly engaged in executive and management functions"and (2) "the employee must exercise responsibility for directing the effectuation of management policesand procedures." City of Evanston v. Illinois State Labor Relations Board, 227 Ill. App. 3d 955, 974, 592N.E.2d 415, 427 (1992).

"[E]xecutive and management functions specifically relate to the running of the agency ordepartment, including the establishment of policies and procedures, preparation of the budget, andresponsibility that the agency or department operates effectively and efficiently." Department of CentralManagement Services v. Illinois State Labor Relations Board, 278 Ill. App. 3d 79, 87, 662 N.E.2d 131,136 (1996). Accordingly, meeting the first part of the test requires more than the exercise of professionaldiscretion and technical expertise. Department of Central Management Services, 278 Ill. App. 3d at 87,662 N.E.2d at 136. Rather, "[t]he employee must possess and exercise authority and discretion whichbroadly effects [sic] a department's goals and means of achieving its goals." Department of CentralManagement Services, 278 Ill. App. 3d at 87, 662 N.E.2d at 136. The second part of the test is met"when an individual oversees or coordinates policy implementation through development of means andmethods of achieving policy objectives, determines the extent to which the objectives will be achieved,and is empowered with a substantial amount of discretion to determine how policies will be effected." Department of Central Management Services, 278 Ill. App. 3d at 87, 662 N.E.2d at 137. The fact thatemployees make independent decisions with regard to carrying out their duties does not mean that theiractions transcend to the level of executive or management function. Chief Judge of the EighteenthJudicial Circuit v. Illinois State Labor Relations Board, 311 Ill. App. 3d 808, 815, 726 N.E.2d 147, 152(2000). "If the employee's role is advisory or subordinate, the employee is not a managerial employeebecause it is the final responsibility and independent authority to establish and effectuate policy thatdetermines management status." Department of Central Management Services, 278 Ill. App. 3d at 87,662 N.E.2d at 136-37. "[G]iven the concern for divided loyalty between employer and union, 'therelevant consideration is effective recommendation or control rather than final authority' over employerpolicy." Chief Judge of the Sixteenth Judicial Circuit, 178 Ill. 2d at 339-340, 687 N.E.2d at 798, quotingNational Labor Relations Board v. Yeshiva University, 444 U.S. 672, 683 n.17, 63 L. Ed.2d 115, 126 n.17,100 S. Ct. 856, 863 n.17, (1980).⁽¹⁾

We find the ILRB's determination that the attendings are notmanagerial employees is not clearly erroneous.

There is some evidence that the attendings' activities on the committees and in the departmentmeetings could constitute performance of executive and management functions. However, an elementto be considered in determining an employee's managerial status is whether his "policymaking role isadvisory or subordinate since 'it is the final responsibility and independent authority to establish andeffectuate policy that determines managerial status under the Act.' " Village of Elk Grove Village, 245 Ill.App. 3d at 122, 613 N.E.2d at 320, quoting City of Evanston, 227 Ill. App. 3d at 975, 592 N.E.2d 415. Although "effective recommendation or control rather than final authority" over employer policy is therelevant consideration, the employee must still " ' "formulate and effectuate management policies byexpressing and making operative the decisions of their employer." ' " Chief Judge of the SixteenthJudicial Circuit, 178 Ill. 2d at 340, 687 N.E.2d at 798, quoting National Labor Relations Board v. BellAerospace Co., Division of Textron, Inc., 416 U.S. 267, 288, 40 L.Ed. 2d 134, 150, 94 S. Ct. 1757, 1768(1974). Such is not the case with the attendings here.

The attendings' role on the committees and in department meetings is merely advisory. Therecommendations resulting from the attendings' participation in the committee and department meetingsare not implemented as a matter of course. Depending on whether a recommendation originated from acommittee or a department and from which committee, it is subject to review and possible veto by themedical director, the COO, the medical executive committee, the joint conference committee and/or, inmany instances, the Board. Ultimately, the Board is responsible for assessing all recommendations fromthe Bureau chief, the COO and the medical director/chief medical officer. In no way do the attendingshave the authority to "make operative" the policies of the hospital. They can recommend policies butthey cannot institute polices without approval of those recommendations by others. As Madhu Malhotra,M.D., the medical director, testified, attendings can take any policy recommendation to various people,such as herself or the president of the medical staff, but only then can "further action [ ] be taken" on therecommendation. Moreover, Joyce Gertzen, M.D., the chair of the department of medicine, testified thatattendings limit their input to matters concerning attendings.

Although managerial status is not limited to only the highest levels of the governmental entity(Salaried Employees of North America (SENA) v. Illinois Local Labor Relations Board, 202 Ill. App. 3d1013, 1021, 560 N.E.2d 926, 932 (1990), quoting Board of Regents of the Regency Universities Systemv. Illinois Educational Labor Relations Board, 166 Ill. App. 3d 730, 742, 520 N.E.2d 1150, 1158 (1988)), itdoes require sufficient independent authority and discretion to broadly effect a department's goals ormeans of achieving its goals (Village of Elk Grove Village, 245 Ill. App. 3d at 122, 613 N.E.2d at 320; Cityof Evanston, 227 Ill. App. 3d at 975, 592 N.E.2d at 428). Here, the only discretion the attendingsexercise is in providing patient care and results from their professional and technical expertise. Theyhave no independent authority to do anything besides practice medicine, let alone the authority tobroadly effect a department's or the hospital's goals.

The evidence shows that, even though a majority of the attendings' recommendations areultimately accepted and implemented, it is not without a thorough examination through a many-layeredapproval process. First, a committee or department must reach consensus on an attendings' suggestion. Second, if consensus is reached, a recommendation is forwarded for review, revision and possibleapproval to the medical director, the COO or the medical executive committee and, in many cases, allthree. For example, Dr. Gertzen testified that Dr. Malhotra must approve all proposed departmentpolicies, including department staffing, and, on occasion, Dr. Malhotra has revised a recommendationand sent it back to the department or committee, which then accepts her changes. Third, depending onthe subject of the recommendation, if approved it may be implemented (usually limited torecommendations with department-only impact) or forwarded on to the joint conference committee(recommendations with hospital-wide impact). Lastly, the Board must approve many of therecommendations, including any affecting medical staff rules and regulations, appointment or terminationof medical staff, budget, finances and overall policies for operation of the hospital. Recommendationsoriginating from the committee and department meetings are not approved as a matter of course. Consequently, the attendings do not have the power of "effective recommendation or control," as shownby the significant lack of independent authority, as well as a lack of final authority, to effect goals ormeans of achieving those goals and their role in running the departments and hospital is clearly advisoryrather than managerial.

Assuming arguendo that the attendings' work on the committees and in the department meetingsdoes constitute performance of executive and management functions, the attendings do not engagepredominantly in such executive and management functions as required for exclusion under the Act. The evidence shows that, typically, the committees meet once a month, if that, and the two types ofdepartment meetings, although held more often, generally last only half an hour to one hour andattendings appear to spend approximately 10% of their work time on committee and department meetingactivities.⁽²⁾ Attending Dr. Jahan serves on four committees and 90% to 95% of her work time is engagedin providing direct patient care. Attending Dr. George serves on three committees and 90% of his worktime is engaged in patient care. Attending Dr. Jolepalem testified that he is on two committees anddevotes 95% of his work time to direct patient care. Attending Dr. Mirza serves on no committees and99% of her work time is spend on direct patient care. Attending Dr. Begum serves on no committeesand spends 90% of her work time in patient care. Rehabilitation attending Dr. Neerukonda has assumedsome of the duties of her absent department chair yet still spends 75% of her time on providing directpatient care. Prior to assuming the chair duties, she served on two committees and spent 90% of hertime in patient care. Senior attending Dr. Makar serves on five committees and spends 75% of his worktime on patient-care activities. Attending Dr. Ashenhurst is the aberration, spending only 50% of herwork time on patient care, in the form of hematology consultations. However, the remaining 50% of herwork time is primarily devoted to staffing the employee health service rather than to committee anddepartment work.

As the testimony shows, the attendings engage predominantly in activities related to patient care. Even though patient-care activities include issuing orders regarding medication, treatment and therapyand directing nurses and other support personnel, they do not constitute executive or managementfunctions. The attendings are merely exercising their "professional discretion and technical expertise" inorder to provide the best care for their patients. We do not find, as the County argues, that theattendings' direction of patient care "encompasses innumerable responsibilities and functions normallynot handled by physicians" such that their patient-care duties are not separate from their managementduties. In providing patient care, the attendings are not doing anything different from similarly situatedattendings in other hospitals. The evidence does not show, as the County asserts, that the hospital'sbylaws endow the attendings with "particular patient care responsibilities different from any other doctor'sroutine practice of medicine." The attendings' patient-care responsibilities are the same as any otherdoctor's. As the attendings do here, all doctors routinely perform their patient-care responsibilities in thebest interest of the patient, within a framework of rules, regulations, policies and budget constraints. Thefact that the attendings have some input into those policies through their work in the committee anddepartment meetings does not change the fact that, in performing their patient-care activities, theirdecisions are significantly circumscribed by predetermined requirements and procedures established bythe hospital, the Bureau and the Board.

The attendings' patient-care activities do nothing to "run" their department, to set thedepartment's goals, to establish and effectuate policies or procedures, to determine hours, wages andschedules or to create budgets. As Drs. Jolepalem, Begum, Jahan, Mirza and Neerukonda testified,attendings have no role in scheduling support staff such as nurses and technicians, choosing patients,setting fees and hours, buying equipment or setting budgets. As several attendings testified, it is up toeach attending to determine how he or she practices medicine within guidelines suggested by thehospital, although they may exercise their professional discretion to vary their treatment plans ifabsolutely necessary.

Attendings work in treatment teams with support staff such as nurses and technicians. However,the attendings' direction of the support staff does not amount to performance of a managerial orexecutive function. It is no more than the exercise of the attendings' professional discretion andtechnical expertise in aid of providing the best patient care. As the head of the team, an attending mustdetermine the best course of treatment and issue treatment orders to that effect. Although nurses andtechnicians carry out treatment orders, typically such orders are written into a patient's chart and a nurseor technician then carries them out as predetermined by his or her own scheduling, training andsupervisory lines of authority. As several of the attendings testified, an attending cannot select aparticular nurse to carry out an order and cannot schedule a nurse or order him to stay overtime. Thesupport staff have their own lines of authority, and if an attending has a complaint about a nurse ortechnician, he must report that to the nurse's supervisor. Although an attending has the final decisionand ultimate responsibility regarding patient care, she cannot overrule a technician or social worker; onlyrecommend a treatment plan and, if the plan is not followed, pursue the issue with the support person'ssupervisor. The Board did not err in finding that the attendings' discretionary patient-care actions are notexecutive and managerial activities. Accordingly, since the attendings engage predominantly in patientcare, the ILRB was correct in finding that the attendings are not managerial employees on this basis.

The County lastly asserts that the attendings are managerial employees as a matter of law. Traditionally, whether an employee met the definition of managerial depended on a fact-based analysisthat emphasized the particular duties of the individual employees. American Federation of State, County& Municipal Employees v. Illinois State Labor Relations Board, 333 Ill. App. 3d 177, 185, 775 N.E.2d1029, 1034 (2002). Then, in 1995, our supreme court determined that public employees could bemanagerial employees as a matter of law. Office of the Cook County State's Attorney v. Illinois LocalLabor Relations Board, 166 Ill. 2d 296, 305, 652 N.E.2d 301, 305 (1995), followed in, Chief Judge of theSixteenth Judicial District, 178 Ill. 2d 333, 687 N.E.2d 795. However, our supreme court limitedapplication of the "managerial as a matter of law doctrine" to publicly employed attorneys whoseactivities are specifically circumscribed by statute such that their statutorily defined duties, in effect,cause them to be the surrogates for their employers, the office holder under whom they serve. ChiefJudge of the Sixteenth Judicial District, 178 Ill. 2d at 347, 687 N.E.2d at 801 (assistant public defenders);Office of the Cook County State's Attorney, 166 Ill. 2d 296, 652 N.E.2d 301 (1995) (assistant State'sAttorneys); see also American Federation of State, County & Municipal Employees, 333 Ill. App. 3d 177,775 N.E.2d 1029 (2002) (assistant state appellate defenders); Salaried Employees of North America, 202Ill. App. 3d 1013, 560 N.E.2d 926 (attorneys employed by City of Chicago law department).

Patient care is the business of the hospital, and, in attending to the needs of patients, thehospital's customers, the attendings are acting in the interest of their employer and making decisions onbehalf of their employer. National Labor Relations Board v. Health Care & Retirement Corp. of America,511 U.S. 571, 577, 128 L. Ed. 2d 586, 594, 114 S. Ct. 1778, 1782 (1994). However, the attendings arenot surrogates for the Board, the County or the hospital such that their interests cannot be separatedfrom those of their employer. See Salaried Employees of North America, 202 Ill. App. 3d at 1022, 560N.E.2d at 932, citing Yeshiva, 444 U.S. at 688, 63 L. Ed 2d at 129, 100 S. Ct. at 865. It is not the casethat the hospital functions "as a single cohesive unit in which tasks are assigned in a team fashionwithout any concern for, or recognition of, a formal management/union division between [the attendings]"such that it could not operate efficiently if divided into union/nonunion attendings. Salaried Employees ofNorth America, 202 Ill. App. 3d at 1022, 560 N.E.2d at 933. Unlike the publicly employed attorneys, theattendings do not exercise a "tremendous amount of discretion" on behalf of their employer. SalariedEmployees of North America, 202 Ill. App. 3d at 1023, 560 N.E.2d at 933. Even putting aside the factthat the attendings do not represent the office of a particular person such as the State's Attorney, it isclear that they do not " 'exercise some portion of the sovereign power' " of their employer, possess thepower of their employer " 'in the same manner and to the same effect' " as their employer and are not "'clothed with all the powers and privileges' " of their employer. Office of the Cook County State'sAttorney, 166 Ill. 2d at 303-04, 652 N.E.2d at 304, quoting People v. Tobias, 125 Ill. App. 3d 234, 242(1984), and People v. Nohas, 9 Ill. App. 3d 570, 575 (1973), respectively. Accordingly, unlike thepublicly-employed attorneys, allowing the attendings to participate in collective bargaining will not requirethem to divide their loyalty between their employer and the collective bargaining unit. We find theBoard's application of the traditional fact-finding analysis to be correct. Accordingly, the Board'sdetermination that the attendings are not managerial employees subject to exclusion from collectivebargaining is not clearly erroneous.

Supervisory Employees

The County also argues that the ILRB's determination that the rehabilitation attendings are notsupervisors within the meaning of section 3(r) of the Act is against the manifest weight of the evidence. The ILRB affirmed the ALJ's finding that the rehabilitation attendings are not supervisors withoutcomment in a footnote of its decision. Accordingly, we are left with the ALJ's findings to consider. TheALJ determined that the rehabilitation attendings were not supervisors because he disagreed with theCounty's argument that the rehabilitation attendings have the supervisory authority to direct anddiscipline the residents. The County contests this finding, arguing that (1) the ALJ mistakenly believedthat in all cases the program director, rather than the rehabilitation attendings, made the final decisionsregarding the evaluation and discipline of the residents; and (2) even if the ALJ was correct in thisregard, his legal conclusion was wrong because the attendings spend a preponderance of their timeassigning, reviewing, monitoring, teaching and instructing the residents. We review this mixed questionof law and fact under the clearly erroneous standard. AFM Messenger Service, Inc., 198 Ill. 2d at 391,395, 763 N.E.2d at 279, 282.

The Act excludes supervisors from participation in the same collective bargaining units asnonsupervisors in order to ensure employers that " 'pro-union bias will not impair the supervisor's abilityto apply the employer's policies to subordinates according to the employer's best interests.' " ChiefJudge of the Circuit Court of Cook County v. American Federation of State, County & MunicipalEmployees, 153 Ill. 2d 508, 515, 607 N.E.2d 182, 186 (1992), quoting City of Freeport v. Illinois StateLabor Relations Board, 135 Ill. 2d 499, 506, 554 N.E.2d 155, 159 (1990). The Act seeks "to avoid theconflict of interest which arises when supervisors, who must apply the employer's policies tosubordinates, are subject to control by the same union representing those subordinates." City ofFreeport, 135 Ill. 2d at 517, 554 N.E.2d at 164. "The potential for a conflict of interest lies in thesupervisor's authority to influence or control personnel decisions in areas most likely to affect theemployment of subordinates and, thus, most likely to fall within the scope of union representation." (Emphasis in original.) City of Freeport, 135 Ill. 2d at 518, 554 N.E.2d at 164.

Section 3(r) of the Act, in relevant part, defines a "supervisor" as:

"an employee [1] whose principal work is substantially different from that of hisor her subordinates and [2] who has authority, in the interest of the employer, to hire,transfer, suspend, lay off, recall, promote, discharge, direct, reward, or disciplineemployees, to adjust their grievances, or to effectively recommend any of those actions,[3] if the exercise of that authority is not of a merely routine or clerical nature, butrequires the consistent use of independent judgment. [4] Except with respect to policeemployment, the term 'supervisor' includes only those individuals who devote apreponderance of their employment time to exercising that authority, State supervisorsnotwithstanding." (Emphasis added.) 5 ILCS 315/3(r) (West 2002).

In order to be deemed a supervisor, an employee must meet all four parts of the Act's supervisorydefinition. Chief Judge of the Circuit Court of Cook County, 153 Ill. 2d at 515, 607 N.E.2d at 186. Performance of any one of the 11 indicia of supervisory authority stated in the second prong of thedefinition, accompanied by independent judgment, is sufficient to support a finding of supervisory status. National Union of Hospital & Health Care Employees, 295 Ill. App. 3d at 1021, 692 N.E.2d at 1258, citingChief Judge of the Circuit Court of Cook County, 153 Ill. 2d at 516, 607 N.E.2d at 186. "Independentjudgment" means that "the employee makes choices between two or more significant courses of actionwithout substantial review by superiors." National Union of Hospital & Health Care Employees, 295 Ill.App. 3d at 1021, 692 N.E.2d at 1258, citing Chief Judge of the Circuit Court of Cook County, 153 Ill. 2dat 516, 607 N.E.2d at 186.⁽³⁾

The union's failure to contest the ILRB's affirmance of the ALJ's finding that the rehabilitationattendings' principal work is substantially different from the residents' and its stipulation that attendingsare professional employees, defined in the Act as any employee engaged in work that is "predominantlyintellectual and varied in character rather than routine * * * [and] involving the consistent exercise ofdiscretion and adjustment in its performance" (5 ILCS 315/3(m) (West 2002)), admits that therehabilitation attendings satisfy the first and third prongs of the definition. The question, therefore, iswhether the rehabilitation attendings meet the second prong of the definition, whether they have the"authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,direct, reward, or discipline employees, to adjust their grievances, or to effectively recommend any ofthose actions." 5 ILCS 315/3(r) (West 2002). Given that the County only argues that the rehabilitationattendings have the supervisory authority to "discipline" and "direct" the residents and to "effectivelyrecommend such action," we will confine ourselves to an examination of those indicia of supervisoryauthority and need not discuss the other nine indicia stated in section 3(r) of the Act. Only if therehabilitation attendings have such supervisory authority will we address the last prong of the definition,whether they devote a preponderance of their employment time to exercising that authority.

The ALJ found that the rehabilitation attendings' role in disciplining residents does not rise to thelevel of supervisory authority because they do not have the authority to impose or formally recommendany disciplinary action be taken against a resident. The ALJ determined that, although a rehabilitationattending may complain to the residency program chair/director about a resident's behavior, it is thechair/director who will determine whether any remedial action or discipline should be imposed on aresident, and then only after conducting an independent inquiry and speaking with the resident. Theevidence bears out this finding.

Residents in the rehabilitation department perform two-month rotations through the departmentunder a contract the hospital has with Rush-Presbyterian-St. Luke's Hospital (Rush). The residents are inresidency at Rush and are employed by Rush. They are paid by Rush, although the County reimbursesRush for the residents' time at the hospital. While at the hospital, residents are assigned to arehabilitation attending for instruction and evaluation. Dr. Neerukonda, a rehabilitation attending,testified that she has the authority to verbally reprimand a resident regarding patient care or treatment ofcoworkers in order to ensure that the best possible patient care is provided. However, she also statedthat, other than patient care, she has no control over the residents. Dr. Neerukonda testified that sheperforms an evaluation at the end of a resident's rotation. She considered the evaluation "additionalinformation" and could recommend discipline therein but did not know what impact her evaluation had ona resident's progress in the residency program

Theresa McCarthy, M.D., chair of the rehabilitation department, testified that, at the end of thetwo-month rotation, a "supervising" rehabilitation attending evaluates the resident in his charge. Theevaluation is submitted to the director of the residency program at Rush. Dr. McCarthy meets monthlywith the program staff at Rush to discuss the residents working in her department and brings up anyissues she has at those meetings. However, Dr. McCarthy can only provide input. Discipline decisionsare up to the Rush program chair who, after hearing any issues raised by Dr. McCarthy or in anevaluation, meets individually with the resident to discuss those issues. Dr. McCarthy testified that,although a rehabilitation attending's evaluation is considered "highly" because a resident mustsuccessfully complete the rehabilitation rotation in order to progress in residency, it is the Rushdepartment chair who determines how a resident progresses. She stated that a resident is put onprobation or terminated on the basis of a "multitude" of evaluations, not just the one from therehabilitation attending. The program chair makes an independent inquiry into any disciplinaryrecommendations; discusses the evaluations with the resident; and, if a problem exists, may decide toput the resident on probation, extend his residency or remove him from the program. Clearly Dr.McCarthy, let alone a rehabilitation attending, cannot discipline a resident or effectively recommend suchdiscipline since her recommendations regarding discipline are not adopted as a matter of course by theRush program chair. The ALJ's finding that the rehabilitation attendings do not have the supervisoryauthority to discipline or effectively recommend discipline of a resident is not clearly erroneous. Consequently, the Board's affirmance of that determination is not clearly erroneous.

The ALJ also found that the rehabilitation attendings' direction of the residents does not rise tothe level of supervisory authority. It is uncontested that the rehabilitation attendings direct the residentsby assigning the residents patient-care duties, instructing and teaching them how to perform those dutiesand reviewing and monitoring the residents' work. However, such direction must be performed "in theinterest of the employer." 5 ILCS 315/3(r) (West 2002). The rehabilitation attendings direct the residentsin order to provide good patient care and are, therefore, performing this direction in the interest of theiremployer to a certain extent. However, the ALJ found that the rehabilitation attendings' authority todirect residents is not supervisory direction within the meaning of the Act because, absent an ability todiscipline or make an effective disciplinary recommendation, a rehabilitation attending has no authorityto affect the residents' terms and working conditions, i.e., areas likely to fall within the scope of unionrepresentation, such as wages, discipline, transfer, promotion, hire or other working conditions. Weagree.

As stated previously, it is the conflict of interest created by the "supervisor's authority to influenceor control personnel decisions in areas most likely to affect the employment of subordinates and, thus,most likely to fall within the scope of union representation" which the Act seeks to avoid by excludingsupervisors from collective bargaining in the same unit as their subordinates. (Emphasis in original.) City of Freeport, 135 Ill. 2d at 518, 554 N.E.2d at 164. Accordingly, the ALJ's and, necessarily, theILRB's interpretation of the statute as requiring that the attendings' direction affect the residents' termsand working conditions, areas likely to fall within the scope of union representation, is entirely in line withthe purpose of the Act. The attendings' direction of the residents must be in the interest of theiremployer in areas which are likely to be addressed by union representation, areas in which the interestsof the employer and the employees are likely to diverge and a conflict of interest created. Such is notthe case. Notwithstanding that the business of the attendings is the same as the hospital's, to providethe best patient care, any direction the rehabilitation attendings give the residents in assigning,instructing, monitoring and evaluating them during their rotation derives from the attendings' superiorskill, experience and technical expertise and such direction, therefore, does not require the use ofindependent judgment "in the interest of the employer" as required by the Act. See City of Freeport, 135Ill. 2d at 532, 554 N.E.2d at 171 (supreme court held that fire lieutenants' direction of firefighters at firescene is solely derived from lieutenants' superior skill, experience and technical expertise and does notrequire use of independent judgment in the interest of the employer).

In National Union of Hospital & Health Care Employees, 295 Ill. App. 3d 1012, 692 N.E.2d 1253,the court determined that the attendings at Cook County Hospital (Cook County) were supervisors underthe Act because they directed the residents at Cook County. We find National Union of Hospital andHealth Care Employees distinguishable. The residents at Cook County are employed by Cook Countyand their residency program is at Cook County while the residents here are employed by Rush, not thehospital, and their residency program is at Rush. At Cook County, the attendings dominate thecommittees overseeing the residency program and their recommendations regarding residents aregenerally followed. As a result, the court found that the attendings have the authority to discipline,promote, demote and discharge the residents. In contrast, as previously discussed, all such directionactivities in the case at bar are performed by the residency program staff at Rush. Unlike the CookCounty attendings, the rehabilitation attendings have no say in recruitment and hiring of residents,scheduling them, approving their breaks and time off, disciplining them or deciding their progress in theresidency. The only areas in which the rehabilitation attendings have the authority to direct the residentsdo not concern areas which might fall within the scope of union representation. The only time arehabilitation attending may possibly impact a resident's term or working conditions is when he writes anegative evaluation and recommends discipline, but even then, the final decision as to such discipline ismade by the Rush program chair after he has looked into the matter independently. Accordingly, theBoard's affirmance of the ALJ's determination that the rehabilitation attendings do not have thesupervisory authority to direct residents as required under the Act is not clearly erroneous. Because theALJ's and the ILRB's findings that the rehabilitation attendings do not have the supervisory authority todirect and discipline the residents or effectively recommend such action were not clearly erroneous, therehabilitation attendings do not meet the second prong of the statutory definition and cannot besupervisory employees under the Act.

For the reasons stated above, we affirm the ILRB's decision.

Affirmed.

SOUTH and HALL, JJ., concur.

1. As our supreme court noted, the managerial exclusion in the Act was adopted from decisionsof the National Labor Relations Board and the United States Supreme Court and the Supreme Court'sapplication of the managerial exclusion provides guidance to our analysis of the exclusion. Chief Judgeof the Sixteenth Judicial Circuit, 178 Ill. 2d at 339, 687 N.E.2d at 797, citing Yeshiva, 444 U.S. 672, 63 L.Ed. 2d 115, 100 S. Ct. 856, and National Labor Relations Board v. Bell Aerospace Co. Division ofTextron, Inc., 416 U.S. 267, 40 L. Ed. 2d 134, 94 S. Ct. 1757 (1974). However, the Act's definition isnarrower than the Supreme Court's, adding the requirement that the employee be engagedpredominantly in executive and management functions (5 ILCS 315/3(j) (West 2002)) and the federalcases are, therefore, of limited use in determining whether the attendings are managerial employeesunder the Act.

2. The parties stipulated that the testifying attendings were representative of the proposedbargaining unit as a whole.

3. The National Labor Relations Act (NLRA) (29 U.S.C.